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  • FIRST POST
    • dan10k
    • By dan10k 26th Oct 17, 8:28 PM
    • 9Posts
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    dan10k
    CEL Claim Defence
    • #1
    • 26th Oct 17, 8:28 PM
    CEL Claim Defence 26th Oct 17 at 8:28 PM
    Hi guys,

    Thanks in advance for taking the time to help. I've had a bit of a shock on my return from work today, after finding a letter addressed to me literally down the side of my couch, which turned out to be a Claim Form from Civil Enforcement Limited, dated 5th October 2017. After doing some digging I realised what it was they were claiming for, and using the MSE newbies guide I quickly lodged an AOS on the MCOL website. I hope being slightly later than 14 days doesn't come back to haunt me.

    The total amount claimed for is £353.57

    A little about my case:
    • Received a PCN for being parked on the car park of a town centre venue/bar for 21 minutes on 04/07/2015.
    • I remained in my vehicle the entire time - I was only there to pick up my wife, who took her sweet time to leave, and didn't feel any warrant in paying & displaying for what was intended to be a matter of a few minutes.
    • PCN was issued on 13/07/2015 - CEL issued an initial letter and followed up with a reminder on 13/08/2015 demanding £100 within 14 days. I ignored this as thought it a ridiculous claim.
    • I was contacted by ZZPS on 18/04/2016 demanding £200, and followed this with another letter on 03/05/2016. Again, I ignored the letters.
    • Wright Hassall got in touch on 23/05/2016 demanding £236.00 within 14 days, warning of potential litigation being recommended to CEL. I ignored of course, as who takes a company with that name seriously (am I right?!?!)!

    I've skimmed through a few CEL posts on here and noted that ixworth's post from last week was highlighted particularly. Excluding his 10th point, would this template be sufficient to lodge my defence with?

    Really appreciate your help guys - this is the first time I've had anything close to a threat of a CCJ (though I'm comforted in the assertion that this almost never happens).
Page 1
    • Redx
    • By Redx 26th Oct 17, 8:32 PM
    • 16,937 Posts
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    Redx
    • #2
    • 26th Oct 17, 8:32 PM
    • #2
    • 26th Oct 17, 8:32 PM
    if it said POC TO FOLLOW WITHIN 14 DAYS then you may have done the AOS too early

    but yes, use that template as a basis for your own defence
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Coupon-mad
    • By Coupon-mad 26th Oct 17, 8:44 PM
    • 51,855 Posts
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    Coupon-mad
    • #3
    • 26th Oct 17, 8:44 PM
    • #3
    • 26th Oct 17, 8:44 PM
    Have a look at some cases from the past 48 hours, where solicitor posters Johnersh and LoadsofChildren123 have assisted people to write an email to the court to ask for an order, due to non-service of Particulars (as the claim form says they will follow).

    And on another CEL thread within the past 2 days I wrote an email for a person to send to CEL once late POC arrive, telling them ''too late, ner ner ner ner ner'' (but in better words).
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • dan10k
    • By dan10k 26th Oct 17, 8:46 PM
    • 9 Posts
    • 1 Thanks
    dan10k
    • #4
    • 26th Oct 17, 8:46 PM
    • #4
    • 26th Oct 17, 8:46 PM
    I can't see that phrase anywhere on the correspondence. What does POC stand for?

    By the way, should they have had to send a Letter Before Action before sending this?
    • Redx
    • By Redx 26th Oct 17, 9:01 PM
    • 16,937 Posts
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    Redx
    • #5
    • 26th Oct 17, 9:01 PM
    • #5
    • 26th Oct 17, 9:01 PM
    Particulars Of Claim - POC

    I suggest you read the NEWBIES sticky thread , post #2 and post #5

    and also read maybe a dozen other oct2017 CEL case threads too, so you get the gist

    if they didnt mention the POC to follow, then you are at the defence drafting stage with woeful POC

    they should have done , yes , but unless a judge decides against them for not doing so it may not matter in the long run

    new protocols came in on 01 oct 2017 (PAP)
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • KeithP
    • By KeithP 26th Oct 17, 9:15 PM
    • 4,788 Posts
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    KeithP
    • #6
    • 26th Oct 17, 9:15 PM
    • #6
    • 26th Oct 17, 9:15 PM
    By the way, should they have had to send a Letter Before Action before sending this?
    Originally posted by dan10k
    Perhaps they did.

    Have a look down the other side of your couch.
    .
    • dan10k
    • By dan10k 29th Oct 17, 4:02 PM
    • 9 Posts
    • 1 Thanks
    dan10k
    • #7
    • 29th Oct 17, 4:02 PM
    • #7
    • 29th Oct 17, 4:02 PM
    Update: got home Friday night to find POCs from CEL. Does that change anything?
    • KeithP
    • By KeithP 29th Oct 17, 4:04 PM
    • 4,788 Posts
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    KeithP
    • #8
    • 29th Oct 17, 4:04 PM
    • #8
    • 29th Oct 17, 4:04 PM
    Have a read of this very new thread:

    .
    • dan10k
    • By dan10k 30th Oct 17, 7:34 PM
    • 9 Posts
    • 1 Thanks
    dan10k
    • #9
    • 30th Oct 17, 7:34 PM
    • #9
    • 30th Oct 17, 7:34 PM
    Had a read of that thread.

    Indeed my PoC correspondence was dated 11th October but date-stampted the 26th October on the envelope.

    But as I've already filed my AoS is this still relevant to my defence?
    • Redx
    • By Redx 30th Oct 17, 7:38 PM
    • 16,937 Posts
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    Redx
    depends on what the court says about it , due to you doing the AOS before the POC arrived

    that is why we said read the LOC123 post , because it all changed 4 weeks ago and we are ALL catching up
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • dan10k
    • By dan10k 30th Oct 17, 9:34 PM
    • 9 Posts
    • 1 Thanks
    dan10k
    Okay, so I've read up on all the links on the newbie section, read several versions of CEL issues. My whole reason for defence is the severity of the PCN for 21 minutes where the driver was waiting to pick someone up from the bar adjacent to the carpark. The driver doesn't deny having pulled up in order to pick said person up, but believes restraint should be exercised - 21 minutes may seem a long grace period, but in truth little was gained from using the parking space - the driver did not even switch engine off or exit the vehicle!

    Anyway I have drafted a response. I'm unsure how or whether the any of the above should be argued at all - I would appreciate insight of that if possible.


    In the County Court
    Between:
    Civil Enforcement Limited
    V
    XXXXXXXXXXX




    Claim Number: XXXXXXXX




    I, XXXXXXXXXXXXX, deny I am liable to the Claimant for the entirety of the claim for each of the following reasons:

    • The Claim Form issued on 05/10/2017 by Civil Enforcement Limited was not correctly filed under The Practice Direction as it was not signed by a legal person but signed by “Civil Enforcement Limited”.
    • This Claimant has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.



    a. There was no compliant ‘Letter before County Court Claim’, under the Practice Direction.
    b. This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
    c. The Schedule of information is sparse of detailed information.
    d. The Claim Form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information.
    e. The Claim Form Particulars did not contain any evidence of contravention or photographs. These documents, and the ‘Letter before County Court Claim’ should have been produced, pursuant to paragraph 6 of the Practice Direction – Pre Action Conduct. This constitutes a deliberate attempt to thwart any efforts to defend the claim or to “take stock”, pursuant to paragraph 12 of the Practice Direction. Again, this totally contradicts the guidance outlined in the new Pre-Action Protocol for Debt Claims (2017), the aims of which are:

    i. ‘early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute
    ii. enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure
    iii. encourage the parties to act in a reasonable and proportionate manner in all dealings with one another (for example, avoiding running up costs which do not bear a reasonable relationship to the sums in issue) and
    iv. support the efficient management of proceedings that cannot be avoided.’
    f. The Defence therefore asks the Court to strike out the claim as disclosing no cause of action and having no reasonable prospect of success as currently drafted.
    g. Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the following information;

    i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
    ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
    iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
    iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
    v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
    vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
    vii. If Interest charges are being claimed, the basis on which this is being claimed.
    h. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.
    • The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £353.57 for outstanding debt and damages.
    • The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs’ were incurred.
    • This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage 'contract', none of this applies in this material case.
    • In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    a. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.
    b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant.
    c. Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.
    ii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant.
    iii. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
    d. BPA CoP breaches - this distinguishes this case from the Beavis case:

    i. the signs were not compliant in terms of the font size, lighting or positioning.
    ii. the sum pursued exceeds £100.
    iii. there is / was no compliant landowner contract.
    • No standing - this distinguishes this case from the Beavis case:
    It is believed Civil Enforcement do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.
    • The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.
    • The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.
    • Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car over 2 years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keepers can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.


    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    • Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 5th October 2017.
    • Sent a template, well-known to be generic cut-and-paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.
    • Failed to send the Particulars of Claim within the 14 day period following the Claim Form required. It is believed that the claimant is doing so knowingly in order to prompt a weakened and rushed defence from defendants. These have dated the 11th October 2017, but stamped with a post-date of 26th October 2017. The date on the claim form was 5th October 2017. Additionally, the Claim Form did not state that Particulars of Claim would be sent at all. At a minimum the defendant asks the court to dismiss the claim on this basis.


    I believe the facts stated in this Defence Statement are true.
    • Umkomaas
    • By Umkomaas 30th Oct 17, 10:23 PM
    • 15,956 Posts
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    Umkomaas
    My whole reason for defence is the severity of the PCN for 21 minutes where the driver was waiting to pick someone up from the bar adjacent to the carpark.
    Sorry, I’ve not ploughed through your defence, but the ‘severity of the PCN’ won’t wash, not since PE v Beavis. It’s pretty much a dead duck, unless you’ve got your brain fully around Beavis and can determine and articulate any cracks and attempt to squeeze your case through them.

    Alternatively, you swallow the ‘severity’ argument (the court won’t be interested in a semi rant), and look at some of the very recent CEL defences, that are much more likely to push CEL towards a discontinuance, and use these as your base for a winnable defence.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Redx
    • By Redx 30th Oct 17, 10:35 PM
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    • 21,072 Thanks
    Redx
    I agree with the above

    all a PPC has to do is quote the BPA CoP they signed up to and that the SUPREME COURT takes as gospel 2 years ago in the BEAVIS case

    read clause #13 of the BPA CoP

    Compare 21 minutes to the council version of 10 minutes allowed to stay or go to get an idea

    its irrelevant if the vehicle was occupied or not, engine running or not

    There are much better defence points to be used than extremely weak arguments about what constitutes being "parked" or not
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • dan10k
    • By dan10k 1st Nov 17, 8:13 PM
    • 9 Posts
    • 1 Thanks
    dan10k
    Sorry, I’ve not ploughed through your defence, but the ‘severity of the PCN’ won’t wash, not since PE v Beavis. It’s pretty much a dead duck, unless you’ve got your brain fully around Beavis and can determine and articulate any cracks and attempt to squeeze your case through them.

    Alternatively, you swallow the ‘severity’ argument (the court won’t be interested in a semi rant), and look at some of the very recent CEL defences, that are much more likely to push CEL towards a discontinuance, and use these as your base for a winnable defence.
    Originally posted by Umkomaas
    I understand what you're saying - I think I just needed to sound it out. Obviously there are other defences in what I've already written.

    Am I right in assuming that I should have received a NTK? I never received anything titled as such. And if so, should this be high on the list of primary defences?

    As far as what I've already drafted, I assume this looks okay?

    Cheers.
    • Lamilad
    • By Lamilad 1st Nov 17, 8:59 PM
    • 1,201 Posts
    • 2,387 Thanks
    Lamilad
    My whole reason for defence is the severity of the PCN for 21 minutes where the driver was waiting to pick someone up from the bar adjacent to the carpark. The driver doesn't deny having pulled up in order to pick said person up
    To be clear - are you defending as keeper on the basis that either you were not the driver or you are holding them to strict proof as to who was driving?

    If you have not communicated with CEL about who was driving and they don't know then you should be defending as keeper only
    • dan10k
    • By dan10k 2nd Nov 17, 5:37 PM
    • 9 Posts
    • 1 Thanks
    dan10k
    CEL has ever produced any picture evidence of the contravention and I suppose I will be defending as keeper as I’ve never communicated with them about who was driving.

    As to the first question, I suppose the latter. Would it be more effective to claim the former?
    • dan10k
    • By dan10k 3rd Nov 17, 8:49 PM
    • 9 Posts
    • 1 Thanks
    dan10k
    Bumping for a response.
    • Coupon-mad
    • By Coupon-mad 3rd Nov 17, 8:59 PM
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    • 65,486 Thanks
    Coupon-mad
    Defend in the latter way, as keeper saying they have not shown any evidence of the identity of the driver. Your defence looks good enough and this is all about playing the court game, doing the DQ next, then the WS (as explained in the NEWBIES thread) until CEL discontinue.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • dan10k
    • By dan10k 2nd Dec 17, 5:21 PM
    • 9 Posts
    • 1 Thanks
    dan10k
    Just a quick one.

    I've filled out and made 2 copies of the Directions Questionnaire.

    Does it matter if I send the copies to the court/CEL or do the court require the original perhaps?
    • KeithP
    • By KeithP 2nd Dec 17, 5:28 PM
    • 4,788 Posts
    • 3,147 Thanks
    KeithP
    Just a quick one.

    I've filled out and made 2 copies of the Directions Questionnaire.

    Does it matter if I send the copies to the court/CEL or do the court require the original perhaps?
    Originally posted by dan10k
    Post #7 on Bargepole's walkthrough thread, linked from post #2 of the NEWBIES FAQ thread, suggest the emailing the DQ to the court is perfectly in order, and even gives the email address.
    .
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